COMPANY LAW: Suit by company - Authorisation for commencement of action - Warrant to act on behalf of company - Whether Board of Directors assented to commencement and continuation of suit - Objection by major shareholder to pursue suit - Whether major shareholder had locus to intervene in matter - Whether directors acted contrary to wishes of shareholder - Management of company - Whether rests solely in hands of Board of Directors - Written resolution of Board to appoint legal firm to act on behalf of company - Whether mandatory requirement - Conduct of directors - Whether unanimous decision of directors obtained to commence suit although warrant to act not signed by all directors - Whether suit ought to be struck out - Companies Act 1965, s. 131B

CIVIL PROCEDURE: Solicitor - Appointment - Warrant to act on behalf of company - Whether Board of Directors assented to commencement and continuation of suit - Objection by major shareholder to pursue suit - Whether major shareholder had locus to intervene in matter - Whether directors acted contrary to wishes of shareholder - Written resolution of Board to appoint legal firm to act on behalf of company - Whether mandatory requirement - Conduct of directors - Whether unanimous decision of directors obtained to commence suit although warrant to act not signed by all directors - Whether suit ought to be struck out - Companies Act 1965, s. 131B

CIVIL PROCEDURE: Preliminary objection - Lack of authority to act on behalf of company - Oral application to challenge right of counsel to act - Whether appropriate - Whether trial judge erred in striking out action

CIVIL PROCEDURE: Jurisdiction - Courts of coordinate jurisdiction - High Court - Power and jurisdiction of one High Court to transfer case to another High Court - Whether High Court can direct future conduct of proceedings in next High Court - Courts of Judicature Act 1964, Schedule, para 12

CIVIL PROCEDURE: Transfer of proceedings - Application - Application to transfer and consolidate suits - Whether application for consolidation complied with O. 4 r. 1 of Rules of Court 2012 - Whether suits shared same cause of action - Whether there were common questions of fact or law in suits - Whether time and costs would be saved by consolidating suits - Whether parties in suits same - Whether there was risk of inconsistent judgments - Whether application would prejudice one party and benefit other party if granted

CONTRACT: Privity - Building contract - Contract for renovation and variation works - Defendant denied having contractual relationship with plaintiff - Defendant alleged to be merely giving financial assistance - Contracts were made orally and payments were made in cash - Plaintiff's reliance on quotations and invoices issued, previous payment made by defendant and photographs taken as proof of contract - Absence of objection by defendant at time of joint inspection - Whether there was contract between plaintiff and defendant

CIVIL PROCEDURE: Action - Consolidation of actions - Consolidation of several actions to be heard jointly - Common issues of law and fact - All actions pertaining to a series of oppressive complaints under s. 181 of Companies Act 1965 - Whether a trial of all actions before a single judge would save time and costs and ensure an expeditious, just and convenient disposal of actions - Whether consolidation of actions would avoid a situation of conflicting decisions being arrived at based on similar issues of fact and law

CIVIL PROCEDURE: Affidavits - Cross-examination of deponent of affidavit - Application to cross examine deponents of all affidavits - Existence of various disputes of facts raised in affidavit - Whether a party intending to file an application to cross-examine deponent of an affidavit must first identify the specific part of affidavit which they wish to cross-examine - Whether existence of various disputes of facts raised in numerous affidavits would justify an order for cross-examination of deponent of an affidavit

CIVIL PROCEDURE: Discovery - Rules governing discovery - Voluminous documents already filed in court - Applicant seeking discovery of documents without any limitation - Whether order for discovery ought to be granted in view of voluminous documents which were already filed in court - Whether application for discovery was a mere fishing expedition - Whether granting of wide order for discovery without determining type and nature of document was detrimental to speedy disposal of action

CIVIL PROCEDURE: Striking out - Action - Action was time barred - Suit by principal against agent for negligence and misconduct - Whether action brought outside time frame as set out in item 71 of Schedule of the Sarawak Limitation Ordinance

CIVIL PROCEDURE: Striking out - Action - Action based on breach of contract - Existence of exclusion clause in contract - Contract limits liability of a party in respect of claim arising from negligence and misconduct only - Whether action based on breach of contract sustainable

LIMITATION: Accrual of cause of action - Action for negligence - Whether limitation period started to run from time when neglect became known to plaintiff

STATUTORY INTERPRETATION: Construction of statutes - Applicability - Residuary provision - Applicability of item 97 of Schedule of the Sarawak Limitation Ordinance in respect of agency suit - Whether residuary provision can only be relied upon as a last resort - Whether agency suit is covered under item 71 or 97 of Schedule of the Sarawak Limitation Ordinance

NUMERICAL VS. PHYSIQUE OF A CHILD: A SEARCH FOR CONCURRENT AGE OF MARRIAGE BETWEEN THE SHARIAH AND NIGERIAN LAW

ABDULRAHEEM TAOFEEQ ABOLAJI*

ABSTRACT

Child marriage has generated a lot of argument among scholars and this no doubt culminated in the promulgation of laws on child rights. One of the aims of these laws is to prevent child marriage. Others include prevention of sexual abuse and other violent acts. There are divergences in the laws of various states as to marriageable age. The commutative effect of these various laws is that Nigeria as a country has taken a holistic approach to reduce child marriage but the issue still persists and affects the health of children and their wellbeing. This paper therefore examines the concept of child, the determinant factor for the marriageable age of a child; whether by the numerical age or physical appearance and the co-relation between a child marriage and mortality. In doing this, the paper adopts a doctrinal method which involves analysis of primary and secondary data. The paper argues that although child marriage has a negative effect on children, the determination of the word 'child' is different under Shari'ah, because marriageable age is not based on the numerical age.

INTRODUCTION

The issue of child marriage is an age long question even before the enactment of the Child Rights Act 2003 (CRA), because it is a major concern in the protection of children's rights. Protection of children's rights includes safeguarding anything that can endanger their lives which includes child marriage. Child marriage has generated a lot of argument among the contemporary scholars that if a child is engaged in marriage at a tender age, it will definitely affect their health and can lead to a shortened life. This, in a way violates the right of a child enshrined in the 1999 Constitution of the Federal Republic of Nigeria and the CRA. This presumption has been rebutted by the scholars of Shari'ah who hold the view that the word 'child' has to be determined before it can lead to the marriage. This issue is persistent in Nigeria where for instance, 43% of girls are married before their 18th birthday and 17% are married before they attain the age of 15 years.[1] The prevalence of child marriage varies widely from one region to another with figures as high as 76% in the North West region and as low as 10% in the South East.[2] Therefore, this paper examines the concept of child and the legality or otherwise of child marriage and the effect of child marriage under the Shari'ah and Nigerian Law. The paper considers the position of Shari'ah on the determinant factor of marriageable age; whether it is based on numerical age or physical appearance of the child concerned.

The distinction between law, ethics and morality in the West arises in the context of positivism. Classical Latin had no equivalent of the Greek word ethikos, and thus the philosopher Cicero coined the term morales as the Latin equivalent. Thus, the Latin word morales and the Greek word ethikos were meant to have the same meaning. How ironic then, that when these words find their way into English, as “morality” and “ethics” respectively, attempts are made to “distinguish” and “separate” them! For instance, it has been argued that “morality is universal and applicable to all, while ethics denotes the particular values relating to the individual or the collective life of the community”.

The distinction and separation of law and morality is heir to logical positivism and its staple theory, the distinction of fact and value, itself rooted in a specific worldview pertaining to reality and the possibility of knowledge thereof. According to this theory, “fact” is that which can be ascertained by the sensory faculties or empirically proven (hence “objective”), whereas values, not being evident to the senses—apparently the only valid channels of knowledge—cannot be known but instead are subject to individual preferences (hence “subjective”).

Ibn Ashur fell into the same logic in his denial of liturgy as part of Shari’a (redefining Sharia as concerned exclusively with that which concerns society and assigning worship to what he called diyanat). Linguistically, the word commonly translated as “ethics” is akhlaq, which has affinity to sajiyya and tab’.

. . .

* Published with kind permission of the International Institute of Advanced Islamic Studies (IAIS) Malaysia. Also published in New Straits Times on No. 32, May - June 2016. (www.hashimkamali.com or www.iais.org.my).

17 November 2016 pursuant to paragraph 6(1)(xxiii) of the Revision of Laws Act 1968 [Act 1]; Revised up to 1 November 2016; First enacted in 1968 as Act of Parliament No 38 of 1968; First Revision - 1989 (Act 409 wef 14 December 1989)

Notice of Affirmative Final Determination of An Anti-Dumping Duty Investigation With Respect to Imports of Cellulose Fibre Reinforced Cement Flat and Pattern Sheets Originating Or Exported From the Kingdom of Thailand